The Antarctic Treaty: a guideline for the implementation of UNCLOS Part XI on the exploration and exploitation of deep-sea mineral resources?

The conventions on climate change (Rio, 1992; Kyoto, 1997) and the agreement of 1994 relating to the Implementation of Part XI of UNCLOS on deep-sea mineral resources share many historical similarities. These agreements were signed in the 1990s – a decade of triumphant liberalism - in an intellectual context where the principles of the market economy were seen as universal guidelines. The principles set out in Rio in 1992 were well-intentioned: the aim was to reduce greenhouse gas emissions using mechanisms compatible with market rules, but also to allow all countries access to the Western-style development model based on growth, in accordance with the principle of “common but differentiated responsibilities”. These principles conditioned the post-Kyoto follow-up, but proved insufficient to orient research towards alternative technologies and to significantly slow down the race to invest in fossil fuels.

The same applies to the implementation of part XI of the United Nations Convention on the Law of the Sea concerning deep-sea mining in the “Area” outside national jurisdiction. The 1982 Convention was also well-intentioned: it was intended to extend to the submarine domain the principle enunciated by Truman in 1945, according to which undersea mineral wealth is designed to be exploited for the development of mankind. Noting  “the political and economic changes, including market-oriented approaches”, the 1994 agreement on the implementation of Part XI of the 1982 convention was tailored at the request of the industrialized countries, to bring it into line with the principles of the market economy. Although simplified, the provisions set out in this implementation agreement are extremely complex, due to the difficulty of reconciling: i) the great principle set out making the “Area” the common heritage of mankind; ii) the interests of member states; iii) the interests of private operators; iv) the World Trade Organization rules of free competition in a market economy; etc.

In 2025, more than thirty years after the signing of the agreement on Part XI of the Convention on the Law of the Sea, the question arises: should we continue to attempt to reconcile principles that are per se incompatible? Thanks to the Antarctic Treaty of 1959 and its Madrid Protocol on environmental protection (Madrid, 1991), a ban on activities relating to mineral resources is established. Its strength derives from its simplicity. Its symbolic significance has enabled it to stand the test of time. It is a response to the impossibility of bringing into force the Convention on the Regulation of Antarctic Mineral Resource Activities (Wellington, 1988), which proposed a legal regime for the exploitation of resources. Why not make the Antarctic Treaty System a model for the ‘Area’? The International Seabed Authority would then see its mandate evolve from the management of exploitation to the protection of the ‘Area’, for the benefit of humanity as a whole.